Citation Nr: 9918118
Decision Date: 06/30/99 Archive Date: 07/07/99
DOCKET NO. 95-29 326 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder.
2. Entitlement to a total disability rating based on
individual unemployability.
REPRESENTATION
Appellant represented by: John M. McCarty, Attorney
WITNESSES AT HEARINGS ON APPEAL
Appellant, his wife, C.A., and D.C.
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The veteran served on active duty from April 1965 to June
1971. This appeal arises from a June 1995 rating decision of
the Department of Veterans Affairs (VA), Jackson,
Mississippi, regional office (RO).
In October 1997, the Board of Veterans' Appeals (Board)
remanded the case for the purpose of scheduling a travel
Board hearing for the veteran.
In March 1998, a hearing was held in Jackson, Mississippi,
before the Board member rendering this decision, who was
designated by the Chairman to conduct that hearing pursuant
to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1998). At that
time, it was agreed that the issues of entitlement to service
connection for residuals of injuries to the eyes, ears, and
nose, and for an increased evaluation for right ear hearing
loss, would be considered withdrawn if no further evidence
was received with respect to those issues within 30 days of
the date of the hearing. As no such evidence was received in
that interval, those issues are deemed withdrawn and will not
be addressed further.
The issue of entitlement to a total disability evaluation
based on individual unemployability will be addressed in the
remand portion of this document.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's claim for service
connection for an acquired psychiatric disorder.
2. Medical evidence of record establishes that the veteran
has a current acquired psychiatric disorder that is the
result of his service connected head injury during service.
CONCLUSION OF LAW
An acquired psychiatric disorder is proximately due to or the
result of a service connected disorder. 38 C.F.R. § 3.310
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the veteran's claim for service
connection for an acquired psychiatric disorder is well
grounded and that there is no further duty to assist the
claimant in the development of the claim. 38 U.S.C.A. § 5107
(West 1991). No further assistance is required to comply
with the duty to assist mandated by 38 U.S.C.A. § 5107.
Service connection for basilar skull fracture, fractures of
the bilateral maxillary sinuses, and antral sinus, was
granted in February 1972. The veteran claims that he has
additional disability, specifically a psychiatric disorder,
which is secondary to or which resulted from the skull
fracture. Disability which is proximately due to or the
result of a service-connected injury shall be service
connected. 38 C.F.R. § 3.310 (1998).
The service medical records show that the veteran suffered a
serious head injury, which included a skull fracture, in
service in July 1966. Psychological testing in service
following the injury found no evidence of resultant
psychological impairment. A medical board determination in
May 1967 noted no memory problems or personality change. A
VA examination in December 1971 described young adult
situational reaction- resolving, and immature personality. A
VA physician suspected schizophrenia in August 1975. During
a three month VA hospitalization in late 1975, passive-
aggressive personality was diagnosed after brain scan, EEG,
and psychological testing disclosed no evidence of
organicity. A psychological evaluation conducted in May
1994, pursuant to the veteran's claim for Social Security
Administration (SSA) disability benefits, found psychotic
disorder, not otherwise specified. The examiner could not
say whether the diagnosis was related to the veteran's injury
during service. A VA examiner in August 1994 stated that the
veteran provided a history of symptoms consistent with
dementia due to head injury. No actual diagnosis was made.
A psychiatrist's review of the file for SSA purposes in July
1994 noted schizophrenic reaction, paranoid type (vs.
psychotic disorder, n.o.s.), but could not say when the
disorder began. A private psychiatrist, Dr. Guild, examined
the veteran in February 1995. He diagnosed schizophrenia,
but stated that the veteran also had an organic syndrome from
the inservice head injury. Later that month, a board of two
VA psychiatrists reviewed the claims folder and provided an
opinion that the veteran suffered from a psychotic disorder
which was not secondary to head trauma.
In order to reconcile the differing diagnoses and opinions of
record, the Board obtained an opinion in December 1998 from
Kenneth Spaulding, M.D., of the Western Missouri Mental
Health Center. After reviewing the record, Dr. Spaulding
opined that the veteran does currently suffer from at least a
personality disorder or type which interferes with his
functioning. Dr. Spaulding noted that a personality pattern
could develop after a head injury. He opined that the proper
current diagnosis was psychotic disorder due to a general
medical condition, and stated that he would agree that the
veteran had psychiatric sequelae of a traumatic brain injury
in the form of a personality change causing a degree of
dysfunction. He saw no firm evidence of schizophrenia.
The medical opinions of record are split on the issue of
whether the veteran's current psychiatric pathology is a
result of his service connected brain trauma. Accordingly,
the Board concludes that the evidence being in relative
equipoise, that reasonable doubt must be resolved in favor of
the veteran. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R.
§ 3.102 (1998). Therefore, the veteran's claim for service
connection for an acquired psychiatric disorder is granted.
38 U.S.C.A. §§ 1101, 1110 (West 1991); 38 C.F.R. § 3.310
(1998).
ORDER
Service connection for an acquired psychiatric disorder is
granted.
REMAND
The veteran contends that he is unable to obtain or retain
employment as a result of his service connected disabilities.
In light of the above grant of service connection for an
acquired psychiatric disorder, the RO must assign a
disability evaluation for that disorder, and then reconsider
whether the veteran meets the criteria for a total rating
based on individual unemployability. Evidence with respect
to the veteran's current work status should also be
developed.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1998). In view of the
foregoing, the case is REMANDED to the RO for the following:
1. A social and industrial survey should
be conducted. It should be ascertained
if the veteran is working. Family
members, members of the community,
coworkers or former coworkers, and the
veteran should be interviewed. The
purpose of the survey is to gather data
upon which to assess the impact of the
service-connected psychiatric disorder,
residuals of skull fracture, right ear
hearing loss, dentigerous cyst, on the
veteran's ability to secure or follow a
substantially gainful occupation. If
deemed appropriate, the RO may wish to
obtain a VA medical examination.
2. The RO must assign a disability
evaluation for service connected acquired
psychiatric disorder, then adjudicate the
claim for a total disability rating for
compensation purposes based on individual
unemployability, taking into account the
evaluation of the acquired psychiatric
disorder.
If the benefit sought on appeal remains denied, a
supplemental statement of the case should be furnished to the
veteran and his representative. They should be afforded a
reasonable period of time to respond. Thereafter, the case
should be returned to the Board for further appellate
consideration.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals